Articles Posted in Sexual Orientation Discrimination

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Leah Kessler

This summer, we reported on the Second Circuit’s decision to review en banc its holding in Zarda v. Altitude Express, Inc., where the Second Circuit had affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) on the grounds that Title VII does not cover sexual orientation discrimination. On Monday, the Second Circuit broke with precedent and reversed that decision, finding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

While Title VII forbids discrimination in the workplace based on race, color, sex, religion, and national origin, the statute does not explicitly prohibit sexual orientation–based discrimination. This has historically left many employees vulnerable to discrimination because of their sexuality: No federal law explicitly forbids discrimination against LGBT people in the workplace, local laws differ considerably from state to state, and the U.S. Supreme Court has never addressed whether Title VII covers sexual orientation discrimination. While, under the Obama administration, the Equal Employment Opportunity Commission (EEOC)—the government agency that interprets and enforces Title VII—made clear that it views sexual orientation discrimination as a violation of Title VII, the EEOC’s interpretations don’t have legal force in federal court, and courts have typically dismissed Title VII sexual orientation claims in the past.

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Today, the Second Circuit Court of Appeals issued a landmark decision in Zarda v. Altitude Express, Inc., breaking with precedent and holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The court found that Title VII’s sex discrimination provision covers discrimination on the basis of sexual orientation, writing that it is “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The decision, which makes the Second Circuit the second circuit court to arrive at such a ruling, means that LGBT New Yorkers are now protected by federal law against sexual orientation discrimination in the workplace.

We’ll post a blog exploring this decision in more detail later this week, and the Second Circuit’s opinion can be found here. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.

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By Owen Laird

Employees across the country are protected from discrimination by three main federal laws: Title VII of the Civil Rights Act of 1963 (Title VII) protects against discrimination based on race and color, national origin, sex, and religion, while the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protect against discrimination based on disability and age, respectively. Workers in New York City, however, enjoy the protections of one of the most expansive anti-discrimination statutes in the nation: the New York City Human Rights Law (NYCHRL), a city law that is extensive as well as adaptive to their needs.

In addition to those federally protected characteristics listed above, the NYCHRL provides additional protection against sexual orientation, gender identity, marital status, and partnership status discrimination (to name a few). Protection against sexual orientation discrimination and gender identity discrimination is essential as these characteristics are not protected by other statutory regimes, and New Yorkers cannot rely on federal laws to provide this security.

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Earlier this year, we reported on the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital affirming the dismissal of a former security guard’s claims that her employer had discriminated against her because she is a lesbian and did not conform to gender stereotypes. This Monday, December 11, 2017, the U.S. Supreme Court declined to review the Eleventh Circuit’s ruling in Evans, leaving unanswered the question of whether Title VII covers sexual orientation discrimination.

Plaintiff Jameka Evans, who is a lesbian, worked at an Atlanta regional hospital as a security officer. She was open about her sexual orientation with her coworkers and dressed in a masculine manner, wearing the men’s security guard uniform, men’s shoes, and a short haircut. According to Evans’s complaint, the hospital discriminated against her because of her sexual orientation and nonconformity with gender stereotypes by denying her equal pay, harassing her, physically assaulting her, and targeting her for termination, then retaliated against her after she complained about the discriminatory treatment.

Evans brought sex and sexual orientation discrimination claims in the U.S. District Court for the Southern District of Georgia under Title VII, which is a federal statute that protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  The district court dismissed Evans’s sexual orientation discrimination claim, holding that Title VII “was not intended to cover discrimination against homosexuals,” and Evans appealed the ruling to the Eleventh Circuit.

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Edgar M. Rivera, Esq.

On November 15, 2017, in Berghorn v. Texas Workforce Commission, the District Court for the Northern District of Texas dismissed with prejudice plaintiff Kyle Berghorn’s sexual orientation discrimination claim, but allowed him to re-plead his gender stereotyping claim. Berghorn alleged that Xerox terminated his employment because he is gay and because he failed to conform to Xerox’s gender stereotypes. Both of Berghorn’s claims arose under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Berghorn was employed by Xerox from 2002 until February 29, 2016. At the time of his termination, he held the position of senior manager. Xerox terminated Berghorn after finishing an investigation, which purportedly concerned Berghorn’s use of expenses, but in which Xerox instead asked Berghorn several questions about whom Berghorn was sleeping with and whether the person was male. Allegedly, Xerox employees had previously made other disparaging comments about Berghorn’s sexuality, like, “He has no children. He’s gay.” Ultimately, the investigation revealed that Berghorn had not stolen any money from the company and that he had himself paid for personal charges on his card; his expenses were in order. Nonetheless, Xerox fired him.

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Last year, we reported on North Carolina’s Public Facilities Privacy & Security Act, better known as “HB 2.” HB 2, which was passed in March 2016, required North Carolina public schools and agencies to separate bathrooms by “biological sex,” preventing many transgender people from using the bathroom consistent with their gender identity. In the wake of the passage of HB 2, many companies reduced or withdrew their business in North Carolina, and musicians and speakers cancelled scheduled events in protest of the new law. The state was even drawn into conflict with the federal government when, in May 2016, the United States filed suit against the State of North Carolina and Pat McCrory—the state’s Republican governor at the time—on the grounds that HB 2’s “bathroom provision” violated several federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964.

The widespread opposition to HB 2 caused a serious hit to North Carolina’s economy and reputation, and in the year and a half since the law was passed, a number of North Carolina politicians and activists have pushed to repeal it. In March 2017, North Carolina repealed HB 2 with the passage of HB 142. The new bill was hampered, however, by two significant concessions to Republican legislators: a provision stating that regulating “access to multiple occupancy restrooms, showers, or changing facilities” would be left to the state, and a provision prohibiting local governments from “enact[ing] or amend[ing] an ordinance regulating private employment practices or regulating public accommodations.” These components of HB 142 mean that transgender North Carolinians remain vulnerable to discrimination; the state retains its power to control bathroom access, and local governments aren’t able to pass their own laws protecting LGBT constituents from discrimination in the workplace or public accommodations.

On October 18, 2017, Democratic North Carolina Governor Roy Cooper issued a new executive order and consent decree intended to combat discrimination in North Carolina, which he called an important step “toward fighting discrimination and enacting protections throughout state government and across our state.” The executive order prohibits discrimination on the basis of sexual orientation and gender identity or expression, among other protected characteristics, in government agencies and government contracts—a major step for employees of the North Carolina state government or the more than 3,000 vendors who contract with it. The consent decree, which regulates how North Carolina’s executive agencies enforce HB 142 in their public facilities, allows transgender people to use restrooms in accordance with their gender identity.

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On September 29, 2017, the U.S. District Court for the Northern District of Illinois dismissed all claims in Demkovich v. St. Andrew the Apostle Parish, finding that the First Amendment’s “ministerial exception” precluded a gay music director at a Catholic church from bringing wrongful termination claims after he was fired just days after marrying his male partner.

In 2012, St. Andrew Parish and the Archdiocese of Chicago hired Sandor Demkovich as music director, choir director, and organist, where he was responsible for selecting and performing music played during mass at St. Andrew. Reverend Jacek Dada, the pastor at St. Andrew, knew that Demkovich was gay and engaged to a man. But shortly before Demkovich married his now-husband in September 2014, Demkovich’s coworkers told him that Reverend Dada intended to ask him to resign after the wedding and had already started telling St. Andrew employees that Demkovich had been fired.

Sure enough, four days after Demkovich and his husband were married,Reverend Dada called Demkovich into his office and asked him to resign. After Demkovich refused to resign, Reverend Dada fired him, telling him that his union went “against the teachings of the Catholic church.” Demkovich then brought suit in federal court, alleging sex and sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”).

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On October 5, 2017, U.S. Attorney General Jeff Sessions issued a memo to the heads of all federal government agencies and all U.S. attorneys, stating that the U.S. Department of Justice (DOJ) is now taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of gender identity or transgender status. The memo reverses the DOJ’s previous stance on the issue and runs contrary to the position taken by the Equal Employment Opportunity Commission (EEOC), as well as various federal appellate and district courts.

While Title VII explicitly prohibits discrimination on the basis of sex, there has been heated debate in recent years over whether that prohibition includes discrimination against transgender workers. The status of legal protections for transgender employees is complicated: no federal law explicitly forbids discrimination against transgender people in the workplace, state and city employment protections vary widely, and the U.S. Supreme Court has yet to address the question of whether Title VII covers gender identity­–based discrimination. The EEOC views discrimination against transgender people as discrimination based on sex and therefore a violation of Title VII, but the EEOC’s interpretations of Title VII are not legally binding, and federal appellate and district courts have differed in their applications of the statute to transgender workers.

Until last week, the DOJ’s position on Title VII’s applicability to transgender people was consistent with that of the EEOC. Under the Obama administration, in December 2014, former U.S. Attorney General Eric Holder issued a DOJ memo stating that Title VII’s prohibition against sex discrimination encompassed discrimination on the basis of gender identity, as such discrimination unlawfully takes into account “sex-based considerations.” Last week’s memo, however, reverses that position. Sessions characterized the reversal as “a conclusion of law, not policy,” stating that, while Title VII “expressly prohibits discrimination ‘because of…sex,’” it does not prohibit discrimination “based on gender identity per se because the statute “does not refer to gender identity” explicitly. Sessions justified this distinction by claiming that the word “sex” is “ordinarily defined to mean biologically male or female,” and stated that, under the DOJ’s new interpretation, transgender people are covered by Title VII if they are discriminated against based on whether they are “biologically male or female,” but not if they are discriminated against specifically because they are transgender.

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Owen H. Laird

The Harman Firm blog has run several stories over the past year about the evolving case law concerning sexual orientation discrimination under Title VII of the Civil Rights Act.  Last week, a plaintiff in a sexual orientation discrimination case in the Eleventh Circuit, Evans v. Georgia Regional Hospital, requested that the United States Supreme Court take up the issue.

To recap: Title VII is one of the foundational federal anti-discrimination statutes; it protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  Sexual orientation is not one of the protected statuses enumerated in Title VII.  In 2016, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with administering Title VII – filed two lawsuits asserting sexual orientation discrimination claims under Title VII.  This was a major change, as both the EEOC and nearly every federal court had previously taken the position that sexual orientation discrimination was not prohibited under Title VII.

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Owen H. Laird and Walker G. Harman, Jr.

On Wednesday, President Trump and his administration took two major actions against LGBT rights: First, President Trump tweeted that transgender people would no longer be allowed to serve in the U.S. military; then, the Department of Justice (DoJ) filed a brief in an ongoing Second Circuit case, arguing that Title VII of the Civil Rights Act of 1964 (Title VII)—a major federal anti-discrimination statute—does not prohibit discrimination based on sexual orientation. These two actions clearly demonstrate Trump’s position on LGBT rights: He does not support them, and his actions are disturbing and intolerant. As Trump forces the LGBT community—and all of us—to take giant steps backward, we all need to bear arms (so to speak) to protect the rights of all those marginalized within the LGBT community.

Last year, President Obama instituted a new policy allowing transgender people to serve in the military. On Wednesday, President Trump, via Twitter, announced that transgender people would no longer be able to serve, claiming that the armed forces could not afford the “tremendous medical costs and disruption” supposedly caused by transgender people serving in the military. Trump provided no empirical support for his offensive statement. The backlash against Trump’s statement was swift, with Democrats and LGBT advocates swiftly decrying the decision. There are estimated to be anywhere between 5,000 and 15,000 transgender people currently serving in the U.S. military, and Trump’s announcement puts their careers at risk.

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